People v. Cizek CA5

Filed 11/1/13 P. v. Cizek CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F064901 Plaintiff and Respondent, (Super. Ct. Nos. VCF249671, v. PCF203272)

KENNETH ROBERT CIZEK, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. David L. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Franson, J. and Peña, J.

In case No. VCF249671, appellant, Kenneth Robert Cizek, pled no contest to assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1))1 and admitted a great bodily injury enhancement (§ 12022.7, subd. (a)). In case No. PCF203272, Cizek admitted violating his probation. In case No. PCM250853, he pled no contest to being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). On August 23, 2011, the court sentenced Cizek to an aggregate five-year prison term. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we affirm. FACTUAL AND PROCEDURAL HISTORY On February 22, 2011, Porterville police officers responded to a report of an assault and found the victim, D. Smith, sitting on a curb bleeding from lacerations to his face and head. Smith told the officers he was walking by a trailer park when Cizek confronted him and asked if Smith was looking at him. Smith replied he was not and Cizek followed him, demanding to know if Smith was a child molester. When Smith replied he was not, Cizek began punching him in the face, knocking him to the ground. Smith attempted to get up and Cizek pushed him, causing Smith to hit his head on the metal railing at the side of the road. Officers responded to the trailer park, detained Cizek, and transported him to the police station. During an interview, Cizek stated he and a friend saw Smith standing in front of the trailer park watching a young girl and heard him make rude comments. After telling Smith to leave, Cizek walked into the trailer park. He returned to the front of the park later to make sure Smith had left and saw him standing a short distance away. Cizek approached Smith and asked him if he was “some kind of child molester.” When Smith did not respond, Cizek got mad and punched him in the face and head twice.